The Law Offices of Lawrence D. Rohlfing has represented the disabled since 1985 before the Social Security Administration, District Courts across the country, Circuit Courts of Appeal, and the United States Supreme Court.
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Monday, February 25, 2019

On February 21, 2019, the Department of Labor, Bureau of Labor Statistics, released the 2018 data set for the Occupational Requirements Survey (ORS). I checked the data against Occu Collect and found significant differences. I expect data to change with the collection of new information. What I did not expect was the removal of whole categories of data.

The ORS removed data for sitting, standing, and walking. The percent of the day or the number of hours spent sitting or standing/walking -- gone. The existence and number of jobs with sitting versus standing/walking -- gone. Here is the old category:

Physical Demands

Sitting or standing/walking

Standing and walking

Sitting

Sitting vs. standing at will

Hearing

One on one

Group

Telephone

Other sounds

Pass a hearing test

Vision

Near visual acuity

Far visual acuity

Peripheral vision

Communication

Verbal

Climbing

Ramps/stairs: structural only

Ramps/stairs: work-related

Ladders/ropes/scaffolds

Lifting/carrying

Weight (range) lifted/carried – seldom

Weight (range) lifted/carried – occasionally

Weight (range) lifted/carried – frequently

Weight (range) lifted/carried – constantly

Most weight ever lifted/carried (pounds)

Manipulation

Foot/leg controls

One or both

Gross manipulation

One or both

Fine manipulation

And the new list of physical demands:

Climbing ladders, ropes, or scaffolds

Climbing ramps or stairs (structure-related)

Climbing ramps or stairs (work-related)

Communicating verbally

Crawling

Crouching

Driving

Far visual acuity

Fine manipulation

Fine manipulation: one or both hands

Foot/leg controls

Foot/leg controls: one or both feet/legs

Gross manipulation

Gross manipulation: one or both hands

Hearing requirements: Group or conference

Hearing requirements: One-on-one

Hearing requirements: Other Sounds

Hearing requirements: Pass a hearing Test

Hearing requirements: Telephone

Keyboarding: Traditional

Kneeling

Lifting/carrying Constantly

Lifting/carrying Frequently

Lifting/carrying Occasionally

Lifting/carrying Seldom

Maximum weight lifted/carried

Near visual acuity

Peripheral vision

Pushing/pulling: Feet only

Pushing/pulling: Feet/legs

Pushing/pulling: Hands/arms

Pushing/pulling: one or both feet only

Pushing/pulling: one or both feet/legs

Pushing/pulling: one or both hands/arms

Reaching at/below the shoulder

Reaching at/below the shoulder: one or both hands

Reaching overhead

Reaching overhead: one or both hands

Stooping

Strength

There is an innocent explanation. The data may not meet OMB statistical standards and is therefore BLS cannot report the data. There is a nefarious explanation. SSA found the data to eliminate most of the sedentary occupations making the sedentary grid tables questionable in application and permitting even a limitation to six hours of sitting so erosive as to eliminate the ability to perform work. We will have to explore the reasons why BLS removed the categories of data report from the set. More about this later.

Friday, February 15, 2019

At a recent hearing, the vocational expert testified that "simple" is a matter of disagreement depending on the definition of the word. The cases don't prevent a vocational expert from identifying a reasoning level 3 occupation as simple -- just that an apparent conflict exists that requires an explanation.

There are 87 unskilled DOT codes that carry a reasoning level of 3. Of those 87 DOT codes, 22 of them require medium or heavy exertion. We focus on the 65 unskilled DOT codes with a reasoning level of 3 and that require either sedentary or light exertion. We first review the DOT definition of reasoning level 3:

Apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.

Reasoning level 3 requires that ability to understand, remember, and carry out instructions furnished not just orally or in writing, but also diagrammatically. Reasoning level 3 requires the ability to handle problems that involve several different concrete variables. The definition of reasoning level 3 does not sound "simple." Reasoning level 4 is even more complex.

The DOT lists 68 unskilled sedentary and light DOT codes with a reasoning level of 3 or 4. The DOT lists 46 occupations with a significant data worker function (the fourth digit of the DOT code); 40 occupations with a significant people worker function (the fifth digit in the DOT code); and 29 with a significant thing worker function (the sixth digit of the DOT code). The DOT list 6 occupations that have significant worker functions in all three categories; 23 with significant data and people; 11 with significant data and things; and 2 with significant people and things. The DOT explains data-people-things coding:

Much of the information in this publication is based on the premise that every job requires a worker to function, to some degree, in relation to Data, People, and Things. These relationships are identified and explained below. They appear in the form of three listings arranged in each instance from the relatively simple to the complex in such a manner that each successive relationship includes those that are simpler and excludes the more complex. (As each of the relationships to People represents a wide range of complexity, resulting in considerable overlap among occupations, their arrangement is somewhat arbitrary and can be considered a hierarchy only in the most general sense.) The identifications attached to these relationships are referred to as Worker Functions, and provide standard terminology for use in summarizing how a worker functions on the job.

The fourth, fifth, and sixth digits of the occupational code reflect relationships to Data, People, and Things, respectively. These digits express a job's relationship to Data, People, and Things by identifying the highest appropriate function

The DOT lists 20 DOT codes with two Work Fields and three DOT codes with three work fields. The Revised Handbook for Analyzing Jobs defines the concept of work fields:

Work Fields. a component of Work Performed. are categories of technologies that reflect how work gets done and what gets done as a result of the work activities of a job: the purpose of the job. There are 96 Work Fields identified for use by the USES for classification of all jobs in the economy in terms of what gets done on the job.

The DOT lists eight DOT codes with two Materials, Products, Subject Matter, and Services ("MPSMS") codes. The RHAJ defines the concept of MPSMS codes in the context of the overall structure of the DOT data set:

MPSMS is the final link in a chain describing (I) what the worker does (Worker Functions); (2) what gets done (Work Fields); (3) to what (MPSMS).

Of the 68 unskilled sedentary and light DOT codes with a reasoning level of 3 or 4, the DOT lists 30 that have a temperament for repetitive work. Of that list of 30 DOT codes, 21 have a temperament for attaining precise set limits, tolerances, and standards; two have a temperament for working under specific instruction; and eight have a temperament for working with people beyond receiving instructions. The 38 DOT codes that do no have a temperament for repetitive work, seven have a temperament for influencing people; eight have a temperament for performing a variety of tasks; 16 have a temperament for attaining precise set limits, tolerances, and standards; one has a temperament for working under specific instruction; 27 have a temperament for working with people beyond receiving instructions; and 14 have a temperament for making judgments and decisions. Two of the occupations have a temperament for repetitive work and no other required temperament. Temperaments means:

The category Temperaments is one of the components of job analysis because different job situations call for different personality traits on the part of the worker. Experience in placing individuals in jobs indicates that the degree to which the worker can adapt to work situations is often a determining factor for success. A person's dissatisfaction or failure to perform adequately can sometimes be attributed to an inability to adapt to a work situation rather than to an inability to learn and carry out job duties.

Adapt and adjust have the same contextual meaning. Adjust is the legal term use to define the ability to perform other work at step 5 of the sequential evaluation process.

Of the approximately 1,708 light and sedentary unskilled DOT codes. We have already counted 68 with reasoning level 3 and 4. The vast majority, 1,607 occupations, have a significant things code (the sixth digit). The DOT lists 1,398 occupations with one work field; 1,588 occupations with one MPSMS code. The DOT lists 1,587 occupations with the temperament for repetitive work. Most of the 1,708 light and unskilled DOT codes meet the requirements for simple and repetitive work. Reasoning knocks out 68 DOT codes. Data-people-things; work fields; MPSMS codes; and temperaments warrant further consideration in an occupation-by-occupation basis alongside the narrative of the DOT code in question. And it is not a subjective determination; it is a matter of looking at statistical data and drawing conclusions from that data with a subjective pre-determined outcome.

SVP measures the minimum vocational preparation time needed for a job, not
the type of knowledge required. Traditionally, SSA has used SVP as a proxy
to quantify skill required by a job. SVP includes only vocationally relevant
preparation time. Therefore, SVP excludes time spent completing general
education requirements, non-vocationally relevant credentials, general
experience, and probationary periods where workers aren’t actively receiving
on the job training. Exclude any establishment hiring requirements that do not
relate to the job’s critical tasks

From this statement, we can rest assured that the ORS will provide SVP in the same manner as SSA wants -- which is how the DOT was/is organized. The Collection Manual continues:

SVP consists of four components:• Minimum Education• Credentials• Experience• On the Job Training

High school is considered general education and therefore does not count for establishing SVP. Credentials do count if they fall in the list:

• Certifications• Licenses• Educational Certificates• Apprenticeships• Vocational training• Non-credit courses• Credit courses that do not result in a degree

Experience required for the job counts for SVP and includes:

• Skills acquired or used in
a similar job• Progressively responsible
levels of work• Broad, yet related,
vocational capabilities

And on-the-job training both counts and is broader than show and do:

• Time workers take to learn
basic job tasks while being
actively taught by a
supervisor or a more
experienced worker• On the job training with verbal and written instruction, demonstration and
observation, hands-on practice, or imitation• Vocationally relevant classes or training needed to do the job, including
in-plant or internal company training• Time spent shadowing

These reference points allow us to establish that an occupation is not unskilled with data available from the O*NET Resource Center and the ORS when the SVP is not specifically stated but the criteria for SVP are provided. Occu Collect will post the education, training, and experience data next week.

We have the recurring fact pattern of a younger individual limited to sedentary work:

he is able to sit for 6 hours in an 8-hour period; he is able to stand or walk for 2 hours in an 8-hour period; he is unable to climb, but is able to perform occasional balancing, stooping, kneeling, crouching, and crawling; he is able to tolerate occasional exposure to fumes, odors, dusts, gases, and poor ventilation; he is capable of understanding, remembering simple repetitive tasks, and he is able to interact occasionally with coworkers, supervisors, and no contact with the public.

The vocational expert trots out out the standard document preparer, DOT 249.587-018, representing 28,743 jobs in the nation; and election clerk, DOT 205.367-030, representing 20,757 jobs in the nation. These are both office clerks, general. The first problem is that the occupational base is huge. One percent is a significant number of jobs. Now we get to work using Occu Collect.

43-9061 Office clerks, general

Typical Education Needed

High school diploma or equivalent

Work Experience in a Related Occupation

None

Typical On-The-Job Training Needed to Attain Competency

Short-term on-the-job training

2016 Employment

3,117,700

The vocational expert testifies that the identification of these two occupations fit the hypothetical question and is consistent with the Dictionary of Occupational Titles.

The VE tells the ALJ that election clerk is a full-time job. That is not consistent with the DOT. The DOT says that election clerks work during elections and no other time of the year. Arguello v. Berryhill says that an apparent conflict exists. More to the point of the question, these workers deal with the public and require reasoning level 3. Occu Collect 205.367-030 (free summary DOC/SCO report just for signing up).

DOT Narrative: 249.587-018 DOCUMENT PREPARER, MICROFILMING (business ser.) Prepares documents, such as brochures, pamphlets, and catalogs, for microfilming, using paper cutter, photocopying machine, rubber stamps, and other work devices: Cuts documents into individual pages of standard microfilming size and format when allowed by margin space, using paper cutter or razor knife. Reproduces document pages as necessary to improve clarity or to reduce one or more pages into single page of standard microfilming size, using photocopying machine. Stamps standard symbols on pages or inserts instruction cards between pages of material to notify MICROFILM-CAMERA OPERATOR (business ser.) 976.682-022 of special handling, such as manual repositioning, during microfilming. Prepares cover sheet and document folder for material and index card for company files indicating information, such as firm name and address, product category, and index code, to identify material. Inserts material to be filmed in document folder and files folder for processing according to index code and filming priority schedule. GOE: 07.05.03 STRENGTH: S GED: R3 M1 L2 SVP: 2 DLU: 86

Document preparers require reasoning level 3. The occupation of election clerk has significant worker functions of speaking/signaling people to convey or exchange information. Occu Collect 249.587-018 (free summary DOC/SCO report just for signing up). The SCO describes the functions of election clerk as requiring frequent talking and hearing as well as average verbal capacity.

Microfilming is a dead industry. Film decays and is not easily copied to another medium. We use our common sense. Gutierrez v. Colvin.

·Answer and transfer telephone calls or take
messages·Sort and deliver incoming mail and send outgoing
mail·Schedule appointments and receive customers or
visitors·Provide general information to staff, clients,
or the public·Type, format, or edit routine memos or other
reports·Copy, file, and update paper and electronic
documents·Prepare and process bills and other office
documents·Collect information and perform data entry

Rather than performing a single specialized task, general
office clerks have responsibilities that often change daily with the current
needs of the employer.

Some clerks file documents or answer phones; others enter
data into computers or perform other tasks using software applications. They
also frequently use photocopiers, scanners, fax machines, and other office
equipment.

The specific duties assigned to clerks will depend on the
type of office in which they work. For example, a general office clerk at a
college or university may process application materials and answer questions
from prospective students, while a clerk at a hospital may file and retrieve
medical records.

We don't find microfilming on the list. Scanning is there. We don't know if that occupation is unskilled, simple, or repetitive. We do know that the vocational expert did not square the testimony with the OOH.

The Department of Labor states that
the O*NET OnLine provides current information about work. The O*NET OnLine states that general
office clerks have contact with others half the time, most of the time, or
constantly in 98% of jobs.In 2% of
jobs, general office clerks have no contact with others.General office clerks work with a group or
team as at least fairly important in 98% of jobs.General office clerks deal with external
customers as at least fairly important in 94% of jobs.

43-9061.00 - Office Clerks, General

Interpersonal Relationships

%

Response

Contact With Others — How much does this job require the worker to be in contact with others (face-to-face, by telephone, or otherwise) in order to perform it?

82

Constant contact with others

14

Contact with others most of the time

2

Contact with others about half the time

0

Occasional contact with others

2

No contact with others

Interpersonal Relationships

%

Response

Work With Work Group or Team — How important is it to work with others in a group or team in this job?

64

Extremely important

24

Very important

7

Important

2

Fairly important

2

Not important at all

Structural Job Characteristics

%

Response

Duration of Typical Work Week — Number of hours typically worked in one week.

15

More than 40 hours

59

40 hours

26

Less than 40 hours

We now turn to the Occupational Requirements Survey to examine the nature and requirements of general office clerks.

43-9061.00 (office clerks, general)

Series ID: ORUV1000075800000064

Not seasonally adjusted

Series Title: % of office clerks, general; svp is short demonstration only

General office clerks engage in unskilled work in 35.3% of jobs. General office clerks jobs require sedentary exertion in 32.8% of jobs. General office clerks have continuous contact with regular contacts in 21.6% of jobs and more than hourly in 53.4% of jobs and hourly or less in 21.5% of jobs. General office clerks have continuous contact with other contacts in 10.1% of jobs and more than hourly in 27.3% of jobs and hourly or less in 30.7% of jobs. The vocational expert’s testimony fits inside of the published data if an only if every sedentary job is unskilled and has contact with regular and other contacts hourly or less. General office clerks have contact with other contacts not more than once per day including never in 31.7% of jobs. General office clerks sit 75% of the day or less in 25% of jobs. On a full-time schedule, 75% of the day equals six hours. Please recall that 26% of general office clerks work part-time per the O*NET OnLine.

OFFICE
CLERK, GENERAL

SOC
43-9061

No. of Jobs

% Unskilled

# Unskilled

3,117,700

35.30%

1,100,548

# Unskilled

% Sedentary

# Sedentary

1,100,548

32.80%

360,980

# Sedentary

% Occ. Reg. Contacts

# Occ. Reg. Contacts

360,980

21.50%

77,611

# Occ. Reg. Contacts

% No Other Contacts

# No Other Contacts

77,611

31.90%

24,758

# No Other Contacts

% Full-Time

# Full-Time

24,758

74.00%

18,321

# Full-Time

% 6 Hours Sitting

# 6 Hours Sitting

18,321

25.00%

4,580

How many sedentary, unskilled office clerks have occasional contact with coworkers and supervisors, no contact with the public? About 4,580. And lest you have forgotten, the DOT describes the work as requiring reasoning level 3 -- the occupations are not simple.